' 1. The application before the Court for determination is the Notice of Motion dated 20th August 2024, brought under Rule 4 of the Tax Appeals Tribunal (Appeals to the High Court) Rules, 2015, Section 32 of the Tax Appeals Tribunal Act, and Article 159 of the Constitution. The Applicant seeks extension of time to file a memorandum of appeal against the judgment of the Tax Appeals Tribunal delivered on 24th May 2024 in Tax Appeal No. E292 of 2023.
The Applicant’s case
2. The Applicant stated that it was dissatisfied with the Tax Appeals Tribunal’s decision and filed a Notice of Appeal on 19th June 2024. However, counsel handling the matter proceeded on annual leave from 7th July 2024 to 19th August 2024 and inadvertently failed to assign a colleague to file the memorandum of appeal.
3. Upon resumption, counsel discovered the omission, prompting the instant application. The Applicant contended that the delay was neither inordinate nor inexcusable, that the intended appeal is arguable with high chances of success, and that no prejudice would be occasioned to the Respondent if the extension were granted. It was further urged that the application was made promptly upon discovery of the error and that granting it would serve the interests of justice.
The Respondent’s Case
4. The Respondent opposed the application through a replying affidavit sworn on 3rd December 2024 by its director, Raju Dhanani, who deponed that the application was an abuse of the court process and lacked merit. He stated that the Tribunal had delivered judgment on 24th May 2024 in favour of the Respondent in TAT Appeal No. E293 of 2023, setting aside the Appellant’s tariff ruling of 28th April 2023.
5. Mr. Raju averred that any aggrieved party was required to file a notice of appeal within thirty (30) days of the judgment and a memorandum of appeal within thirty (30) days thereafter. The Applicant, however, filed its notice late on 19th June 2024 and its memorandum on 20th August 2024, thirty days outside the statutory limit. The Respondent challenged the explanation of annual leave, arguing that no documentary proof was provided, and that a public institution such as the Applicant could not rely on the absence of one officer to justify statutory non-compliance.
6. He further contended that under Rule 4 of the Tax Appeals Tribunal (Appeals to the High Court) Rules, extension of time requires demonstration of reasonable cause, such as absence from Kenya or illness, which the Applicant had not shown. Citing Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR, the Respondent maintained that extension of time is a discretionary and equitable remedy available only to deserving parties.
7. Finally, the Respondent argued that the intended appeal raised factual issues contrary to Section 56(2) of the Tax Procedures Act, which limits appeals to points of law, rendering the appeal incompetent. He urged that pursuing such an appeal would waste judicial resources and prejudice the Respondent, who had already treated the matter as concluded and taken internal financial actions based on that position.
8. The Respondent thus prayed for dismissal of the application with costs.
Analysis and determination
9. The Applicant and Respondent filed written submissions dated 17th April 2025 and 27th May 2025, respectively.
10. Having considered the pleadings and submissions, the sole issue for determination is: Whether the Applicant has demonstrated sufficient cause to warrant extension of time to file its memorandum of appeal out of time.
11. This being an appeal emanating from the Tax Appeals Tribunal, the applicable law on the timelines within which to file an appeal is Section 32(1) of the Tax Appeals Tribunal Act which provides that: -
“A party to proceedings before the Tribunal may, within thirty days after being notified of the decision or within such further period as the High Court may allow, appeal to the High Court, and the party so appealing shall serve a copy of the notice of appeal on the other party.”
12. Rule 3 and 4 of the Tax Appeals Tribunal (Appeals to the High Court) Rules provide as follows:
• Rule 3 – Time for filing of memorandum of appeal
“The appellant shall, within thirty days, after the date of service of a notice of appeal under section 32(1), file a memorandum of appeal with the Registrar and serve a copy on the Respondent.”
• Rule 4. Extension of time for filing memorandum of appeal
“The Court may extend the time specified in rule 3 if the Court is satisfied that, owing to absence from Kenya, sickness, or other reasonable cause, the appellant was unable to file the memorandum of appeal within that period and that there has been no unreasonable delay on the part of the appellant.”
13. The principles governing extension of time by courts was elaborately discussed by the Supreme Court in its decision in the case of Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR, where the Court held that: -
“This being the first case in which this Court is called upon to consider the principles for extension of time, we derive the following as the underlying principles that a Court should consider in exercise of such discretion:
i. Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the Court;
ii. a party who seeks extension of time has the burden of laying a basis to the satisfaction of the Court;
iii. Whether the Court should exercise the discretion to extend time, is a consideration to be made on a case-to-case basis;
iv. [Where] there is a reasonable [cause] for the delay, the delay should be explained to the satisfaction of the Court;
v. Whether there will be any prejudice suffered by the Respondents if the extension is granted;
vi. Whether the application has been brought without undue delay; and
vii. Whether in certain cases, like election petitions, public interest should be a consideration for extending time.”
14. Further, this Court is guided by the principle that discretion to extend time is unfettered. There is no limit to the number of factors the Court would consider so long as they are relevant. These factors include but are not limited to the period of delay, the chances of the appeal succeeding if the application is granted, the degree of prejudice to the Respondent if the application is granted, the effect of the delay on public administration, the importance of compliance with the time limits, the resources of the parties, or whether the matter raises issues of public importance. All are relevant but not exhaustive factors. In Seventh Day Adventist Church East Africa Ltd. & Another v M/S Masosa Construction Company Civil Application No. Nai. 349 of 2005 the Court (Waki, JA – as he then was) in held that:
“As the discretion to extend time is unfettered, there is no limit to the number of factors the Court would consider so long as they are relevant; the period of delay, (possibly) the chances of the appeal succeeding if the application is granted, the degree of prejudice to the Respondent if the application is granted, the effect of the delay on public administration, the importance of compliance with the time limits, the resources of the parties, whether the matter raises issues of public importance are all relevant but not exhaustive factors…In an application for extension of time, each case must be decided on its own peculiar facts and circumstances and it is neither feasible nor reasonable to lay down a rigid yardstick for measuring periods of delay as explanations for such delays are as many and varied as the cases themselves…The ruling striking out the appeal is not only necessary for exhibiting to the application for extension of time but also for consultations between the applicant’s counsel and their clients and the fact that the ruling was returned to Nairobi for corrections is a reasonable explanation for the delay… Where the Respondent has already recovered all the decretal sum and costs attendant to the litigation, the right of appeal being a strong right which is rivalled only to the right to enjoy the fruits of judgement, no prejudice would be caused to the respondent who has enjoyed his rights in full if an opportunity is given to the applicants to enjoy theirs too, even if it is on a matter of principle.”
15. Additionally, there must be some material before the Court to enable its discretion to be so exercised. In the case of Dilpack Kenya Limited v William Muthama Kitonyi [2018] eKLR Odunga J. observed that:-
“In an application for extension of time, where the Court is being asked to exercise discretion, there must be some material before the Court to enable its discretion to be so exercised. Once there is non-compliance, the burden is upon the party seeking indulgence to satisfy the court why the discretion should nevertheless be exercised in his favour and the rule is that where there is no explanation, there shall be no indulgence. See Ratman v Cumarasamy [1964] 3 All ER 933; Savill v Southend Health Authority [1995] 1 WLR 1254 at 1259."
16. The jurisprudence therefore establishes that extension of time is not automatic. It depends on whether the delay has been sufficiently explained and whether justice would be better served by granting or refusing the extension.
17. In the present case, the Tribunal rendered its judgment on 24th May 2024. The notice of appeal was filed on 19th June 2024, and therefore, the memorandum of appeal ought to have been filed on or about 19th July 2024.
18. The Applicant did not file the memorandum within that period and only filed the present application on 20th August 2024, seeking enlargement of time.
19. The explanation given is that counsel was on annual leave. No supporting documentation, such as a leave notice or letter, was annexed to substantiate that claim. However, the Court notes that the delay was approximately one month, which is not inordinate.
20. The Court must balance the need for adherence to procedural timelines with the constitutional imperative under Article 159(2)(d) that justice shall be administered without undue regard to procedural technicalities.
21. The Applicant moved the Court promptly upon discovering the omission and has already filed its memorandum of appeal. The Respondent has not demonstrated any tangible prejudice that would be suffered if the appeal were heard on its merits.
22. Considering that this is a tax matter where the public interest lies in the just determination of disputes on substantive issues rather than on procedural lapses, I am persuaded that this is a proper case for the Court to exercise its discretion in favour of the Applicant.
23. In the circumstances, and guided by the principles in Nicholas Salat (supra), I find that the delay has been reasonably explained and that the interests of justice favour allowing the Applicant an opportunity to ventilate its appeal.
24. Accordingly, I issue the following orders:
i. The Notice of Motion dated 20th August 2024 is allowed.
ii. The Applicant is hereby granted leave to file and serve its Memorandum of Appeal out of time against the judgment of the Tax Appeals Tribunal delivered on 24th May 2024 in TAT Appeal No. E292 of 2023.
iii. The Memorandum of Appeal shall be filed and served within fourteen (14) days from the date of this ruling.
iv. The costs of the application shall be in the cause.
25. It is so ordered.
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS
27TH NOVEMBER 2025
ADO MOSES
JUDGE
In the presence of: -
C/A – Moses
Sadia Salo…………..for the Appellant/Applicant
'
The Applicant’s case
2. The Applicant stated that it was dissatisfied with the Tax Appeals Tribunal’s decision and filed a Notice of Appeal on 19th June 2024. However, counsel handling the matter proceeded on annual leave from 7th July 2024 to 19th August 2024 and inadvertently failed to assign a colleague to file the memorandum of appeal.
3. Upon resumption, counsel discovered the omission, prompting the instant application. The Applicant contended that the delay was neither inordinate nor inexcusable, that the intended appeal is arguable with high chances of success, and that no prejudice would be occasioned to the Respondent if the extension were granted. It was further urged that the application was made promptly upon discovery of the error and that granting it would serve the interests of justice.
The Respondent’s Case
4. The Respondent opposed the application through a replying affidavit sworn on 3rd December 2024 by its director, Raju Dhanani, who deponed that the application was an abuse of the court process and lacked merit. He stated that the Tribunal had delivered judgment on 24th May 2024 in favour of the Respondent in TAT Appeal No. E293 of 2023, setting aside the Appellant’s tariff ruling of 28th April 2023.
5. Mr. Raju averred that any aggrieved party was required to file a notice of appeal within thirty (30) days of the judgment and a memorandum of appeal within thirty (30) days thereafter. The Applicant, however, filed its notice late on 19th June 2024 and its memorandum on 20th August 2024, thirty days outside the statutory limit. The Respondent challenged the explanation of annual leave, arguing that no documentary proof was provided, and that a public institution such as the Applicant could not rely on the absence of one officer to justify statutory non-compliance.
6. He further contended that under Rule 4 of the Tax Appeals Tribunal (Appeals to the High Court) Rules, extension of time requires demonstration of reasonable cause, such as absence from Kenya or illness, which the Applicant had not shown. Citing Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR, the Respondent maintained that extension of time is a discretionary and equitable remedy available only to deserving parties.
7. Finally, the Respondent argued that the intended appeal raised factual issues contrary to Section 56(2) of the Tax Procedures Act, which limits appeals to points of law, rendering the appeal incompetent. He urged that pursuing such an appeal would waste judicial resources and prejudice the Respondent, who had already treated the matter as concluded and taken internal financial actions based on that position.
8. The Respondent thus prayed for dismissal of the application with costs.
Analysis and determination
9. The Applicant and Respondent filed written submissions dated 17th April 2025 and 27th May 2025, respectively.
10. Having considered the pleadings and submissions, the sole issue for determination is: Whether the Applicant has demonstrated sufficient cause to warrant extension of time to file its memorandum of appeal out of time.
11. This being an appeal emanating from the Tax Appeals Tribunal, the applicable law on the timelines within which to file an appeal is Section 32(1) of the Tax Appeals Tribunal Act which provides that: -
“A party to proceedings before the Tribunal may, within thirty days after being notified of the decision or within such further period as the High Court may allow, appeal to the High Court, and the party so appealing shall serve a copy of the notice of appeal on the other party.”
12. Rule 3 and 4 of the Tax Appeals Tribunal (Appeals to the High Court) Rules provide as follows:
• Rule 3 – Time for filing of memorandum of appeal
“The appellant shall, within thirty days, after the date of service of a notice of appeal under section 32(1), file a memorandum of appeal with the Registrar and serve a copy on the Respondent.”
• Rule 4. Extension of time for filing memorandum of appeal
“The Court may extend the time specified in rule 3 if the Court is satisfied that, owing to absence from Kenya, sickness, or other reasonable cause, the appellant was unable to file the memorandum of appeal within that period and that there has been no unreasonable delay on the part of the appellant.”
13. The principles governing extension of time by courts was elaborately discussed by the Supreme Court in its decision in the case of Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR, where the Court held that: -
“This being the first case in which this Court is called upon to consider the principles for extension of time, we derive the following as the underlying principles that a Court should consider in exercise of such discretion:
i. Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the Court;
ii. a party who seeks extension of time has the burden of laying a basis to the satisfaction of the Court;
iii. Whether the Court should exercise the discretion to extend time, is a consideration to be made on a case-to-case basis;
iv. [Where] there is a reasonable [cause] for the delay, the delay should be explained to the satisfaction of the Court;
v. Whether there will be any prejudice suffered by the Respondents if the extension is granted;
vi. Whether the application has been brought without undue delay; and
vii. Whether in certain cases, like election petitions, public interest should be a consideration for extending time.”
14. Further, this Court is guided by the principle that discretion to extend time is unfettered. There is no limit to the number of factors the Court would consider so long as they are relevant. These factors include but are not limited to the period of delay, the chances of the appeal succeeding if the application is granted, the degree of prejudice to the Respondent if the application is granted, the effect of the delay on public administration, the importance of compliance with the time limits, the resources of the parties, or whether the matter raises issues of public importance. All are relevant but not exhaustive factors. In Seventh Day Adventist Church East Africa Ltd. & Another v M/S Masosa Construction Company Civil Application No. Nai. 349 of 2005 the Court (Waki, JA – as he then was) in held that:
“As the discretion to extend time is unfettered, there is no limit to the number of factors the Court would consider so long as they are relevant; the period of delay, (possibly) the chances of the appeal succeeding if the application is granted, the degree of prejudice to the Respondent if the application is granted, the effect of the delay on public administration, the importance of compliance with the time limits, the resources of the parties, whether the matter raises issues of public importance are all relevant but not exhaustive factors…In an application for extension of time, each case must be decided on its own peculiar facts and circumstances and it is neither feasible nor reasonable to lay down a rigid yardstick for measuring periods of delay as explanations for such delays are as many and varied as the cases themselves…The ruling striking out the appeal is not only necessary for exhibiting to the application for extension of time but also for consultations between the applicant’s counsel and their clients and the fact that the ruling was returned to Nairobi for corrections is a reasonable explanation for the delay… Where the Respondent has already recovered all the decretal sum and costs attendant to the litigation, the right of appeal being a strong right which is rivalled only to the right to enjoy the fruits of judgement, no prejudice would be caused to the respondent who has enjoyed his rights in full if an opportunity is given to the applicants to enjoy theirs too, even if it is on a matter of principle.”
15. Additionally, there must be some material before the Court to enable its discretion to be so exercised. In the case of Dilpack Kenya Limited v William Muthama Kitonyi [2018] eKLR Odunga J. observed that:-
“In an application for extension of time, where the Court is being asked to exercise discretion, there must be some material before the Court to enable its discretion to be so exercised. Once there is non-compliance, the burden is upon the party seeking indulgence to satisfy the court why the discretion should nevertheless be exercised in his favour and the rule is that where there is no explanation, there shall be no indulgence. See Ratman v Cumarasamy [1964] 3 All ER 933; Savill v Southend Health Authority [1995] 1 WLR 1254 at 1259."
16. The jurisprudence therefore establishes that extension of time is not automatic. It depends on whether the delay has been sufficiently explained and whether justice would be better served by granting or refusing the extension.
17. In the present case, the Tribunal rendered its judgment on 24th May 2024. The notice of appeal was filed on 19th June 2024, and therefore, the memorandum of appeal ought to have been filed on or about 19th July 2024.
18. The Applicant did not file the memorandum within that period and only filed the present application on 20th August 2024, seeking enlargement of time.
19. The explanation given is that counsel was on annual leave. No supporting documentation, such as a leave notice or letter, was annexed to substantiate that claim. However, the Court notes that the delay was approximately one month, which is not inordinate.
20. The Court must balance the need for adherence to procedural timelines with the constitutional imperative under Article 159(2)(d) that justice shall be administered without undue regard to procedural technicalities.
21. The Applicant moved the Court promptly upon discovering the omission and has already filed its memorandum of appeal. The Respondent has not demonstrated any tangible prejudice that would be suffered if the appeal were heard on its merits.
22. Considering that this is a tax matter where the public interest lies in the just determination of disputes on substantive issues rather than on procedural lapses, I am persuaded that this is a proper case for the Court to exercise its discretion in favour of the Applicant.
23. In the circumstances, and guided by the principles in Nicholas Salat (supra), I find that the delay has been reasonably explained and that the interests of justice favour allowing the Applicant an opportunity to ventilate its appeal.
24. Accordingly, I issue the following orders:
i. The Notice of Motion dated 20th August 2024 is allowed.
ii. The Applicant is hereby granted leave to file and serve its Memorandum of Appeal out of time against the judgment of the Tax Appeals Tribunal delivered on 24th May 2024 in TAT Appeal No. E292 of 2023.
iii. The Memorandum of Appeal shall be filed and served within fourteen (14) days from the date of this ruling.
iv. The costs of the application shall be in the cause.
25. It is so ordered.
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS
27TH NOVEMBER 2025
ADO MOSES
JUDGE
In the presence of: -
C/A – Moses
Sadia Salo…………..for the Appellant/Applicant
'